from the over-and-over-and-over-again dept

For years, we've seen that the entertainment industry honestly seems to think that it has the right to veto and kill off any new technology that doesn't fit into its own business model plans. Of course, they've had some support in this from copyright maximalists, like former head of the Copyright Office, Ralph Oman, who recently declared that all new technologies that impact content should be presumed illegal until Congress decides otherwise. Can you imagine what sort of innovation we'd have in the consumer electronics space if we had to wait for Congress' approval for each new device? Especially given the power to lobby against such approvals?

I'm reminded of this thanks to News Corp. (via Fox) filing for a new injunction against Dish Networks for the latest version of its DVR, the Dish Hopper with Sling. Now, you may recall that Fox already tried to get an injunction against Dish's Hopper with Sling and lost pretty badly (even as it pretended that it had won). Fox is appealing that decision, but also filed a new request for an injunction against the updated device, claiming that the key new feature, Hopper Transfers, goes beyond anything else and (once again), must be stopped.

This is the same old story over and over again. The last century plus of copyright law has been driven by the entertainment industry flipping out time and time again over new innovations that they don't think should be allowed. The 1909 Copyright Act was driven, in large part, by the introduction of the evil player piano, leading many to insist that this would kill the demand for live music and put musicians out of work.

Around that time, there was also the invention of the gramophone, or, as John Philip Sousa called it, "that infernal machine." He famously claimed, "these talking machines are going to ruin the artistic development of music in this country," and that "we will not have a vocal cord left," because evolution will deem them not necessary due to "talking machines."

Then along came radio, and it too, was destined to wipe out the industry, with ASCAP demanding that any song that was to be played on the radio first needed to (a) get permission from the rights holder and (b) have the DJ state clearly before each song that it was being played "by special permission" from the rightsholder. When people started mocking that phrase (and someone even wrote a song about it), ASCAP stated that the permission line had to be spoken by DJs with "no facetious trifling."

Moving on, along came cable TV to add some competition to the TV market. And what happened? Lawsuits of course. "It would be difficult to imagine a more flagrant violation of the Copyright Act," we were told.

And you may have heard what happened when the original VCR was invented. Why the MPAA's Jack Valenti had a thing or two to say about that:

I say to you that the VCR is to the American film producer and the American public as the Boston strangler is to the woman home alone.

Cassette recorder? "Home taping is killing music."

DVR? Must be illegal. According to the head of Turner Broadcasting: "People who watch TV without commercials are stealing from the entertainment producers."

How about the first real MP3 player, the Diamond Rio? Lawsuit filed in which it was stated that allowing the device, "will injure not only the record companies and artists whose work will be pirated, but also the music publishers, musicians, background singers, songwriters and others whose existence is dependent on revenue earned by record sales."

YouTube? Viacom's lawsuit is still ongoing, but Viacom insisted that, if allowed, YouTube would "severely impair, if not completely destroy, the value of many copyrighted creations."

And lets not even get into all of the technologies that the entertainment industry has been shutting down over the past few years. Zediva? Dead. ivi? Gone. Aereo? Still here, but fighting. Veoh? Dead (even though it won its lawsuit). MP3Tunes? Bankrupt due to lawsuit (even though it won too). There are many more as well.

See a pattern yet? This pattern repeats over and over and over and over again. The entertainment industry, aided by the Copyright Office, seems to think that there's some sort of role it has to play in giving the yay or nay vote to any new technological innovation that concerns content consumption. And, of course, the vote is always "nay." In the long run, that always turns out to be the wrong vote. So why do we constantly allow the entertainment industry to get away with this nonsense? This filing from Fox is merely the latest in a very long line of these kinds of actions, and it should be immensely troubling to those who recognize that the best way for the entertainment industry itself to thrive in the modern world is to embrace these new services, which increase value to consumers and make them more interested in watching/listening to the content being produced.

You would think that, after a century of these examples, those in the entertainment industry might finally realize that looking for the opportunities in these innovations is a more productive strategy than trying to kill every new technology. Apparently, however, the industry is still run by people who have no sense of history, other than the history of always ratcheting up copyright enforcement.

from the oops dept

There continues to be a flurry of activity and motions and such around the Apple/Samsung patent fight, and we're avoiding most of the play-by-play until something "big" happens. But today there was an interesting ruling from the appeals court, concerning the original injunction that Judge Lucy Koh issued, blocking Samsung from selling the Galaxy Tab 10.1 device (which is already a bit obsolete anyway). She had issued that injunction earlier in the case, before the jury ruled, and that actually has presented something of a problem. Among the patents that the jury said Samsung did not infringe was the one that Koh relied on to issue her injunction. Given that, the appeals court has sent the injunction back to Koh to reconsider. Of course, all this really reinforces is the ridiculousness of the patent system today: a judge can assume that an entire product line can be blocked because it's infringing on a particular patent... only to have a jury (which in this case clearly mostly sided with Apple anyway) decide that the patent didn't apply. When a system comes up with such arbitrary results, it's a sign that the system itself is broken.

"Apple has made a clear showing that, in the absence of a preliminary injunction, it is likely to lose substantial market share in the smartphone market and to lose substantial downstream sales of future smartphone purchases and tag-along products," Judge Koh said in Friday's ruling.

First of all, this seems to be yet another admission by Apple that it just can't compete in the marketplace against Samsung. Such a ruling seems to scream out to potential buyers: hey, check out the devices that even Apple admits you'd want over its own. But, more importantly, "losing substantial market share" is what competition is all about. If someone comes out with a better product, then the other company should lose substantial market share. That doesn't deserve an injunction. That harms the market, who clearly -- even by Apple's own admission, apparently -- wants the other product more.

The fact that two phones will compete is no reason to ban a phone. Let them compete. Let the market decide.

Even more bizarre is why an injunction should be issued at all. Following the MercExchange decision, courts are only supposed to issue injunctions in exceptional cases. If it's an issue that can be dealt with by requiring a royalty, then there's no reason to issue an injunction.

Samsung, of course, is appealing this and asking that the injunction be put on hold until that appeal is heard. In the meantime, some are pointing out that, for all of Apple's insistence that Samsung copied the designs of its phone and tablet from Apple, you could easily make the argument that Apple got some inspiration from Samsung as well:

And really, that's the point. Innovation and advancement involve all sorts of copying, but also improvements. It goes back and forth. Attacking one party for copying another misses the point, limits competition and harms consumers. It's too bad the US patent system and the courts now want to aid that process.

If open source innovation has great social benefits in fostering competition and innovation, it also has particular vulnerabilities. First, precisely because open source development takes place in a network and allows both small and large players to participate by building on a common technology, it is particularly susceptible to attack and disruption. A proprietary monopolist fully internalizes both the costs and benefits of policing its technology and its intellectual property. Members of an open innovation network, however, do not. Individual members can be "picked off," forced to abandon promising lines of technological development, or to pay ruinous "stacked" royalties because the costs of litigation are too burdensome for any one member of the network to bear. It is in this context that the threat of injunctions is particularly worrisome. In fast-moving technology markets, the dead stop forced by an injunction can be enough to doom a product. An entire network of innovation could be shut down by an injunction obtained against a single small participant who lacks the resources necessary to challenge the patent or defend against the injunction.

Second, most of these markets are characterized by strongly cumulative innovation. A finished product may "read on" literally thousands of potential patents.

Boyle explores these great points at length in his paper, which is well-worth reading. He also offers some suggestions for ways in which the threat of patent injunctions against open source can be reduced thanks to a ruling by the Supreme Court, eBay, Inc. v. MercExchange, L.L.C, and the four-part test it introduced:

the Court held that permanent injunctions in patent law are governed by the same equitable four-part test as injunctions in other areas of law.

A plaintiff must demonstrate: (1) that it has suffered an irreparable injury; (2) that remedies available at law, such as monetary damages, are inadequate to compensate for that injury; (3) that, considering the balance of hardships between the plaintiff and defendant, a remedy in equity is warranted; and (4) that the public interest would not be disserved by a permanent injunction.

Boyle writes:

this Article argues the Supreme Court’s test in eBay, properly understood, offers some constructive ways to respond to both the benefits of open source innovation and the threats posed to it by injunctions. In particular, the third and fourth factors -- the "balance of hardships" component and the "public interest" component -- are ideally suited to allow recognition of the unique vulnerabilities and the unique competitive and innovative value of open source production.

As open source becomes more widely deployed, so the potential damage that software patents can cause to it grows. Boyle's paper is a timely reminder that judges need to take into account the special nature of open source when considering whether to grant patent injunctions if society as a whole is to benefit, and not just the patent holders.